Obama chooses to tweak NSA, rather than embrace reform

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President Obama announced changes to the NSA’s authority but left the basic structure intact.

January 17, 2014

The committee appointed by President Obama to review the secret surveillance programs revealed by Edward Snowden made a long list of thoughtful recommendations for how oversight at the NSA could be beefed up to provide greater protections to privacy, without seriously compromising security. The review panel suggested that the NSA focus more narrowly on foreign intelligence, that it be led by a civilian rather than a member of the military, and that it be separated from the military’s Cyber Command.

These were strong recommendations that deserved to be either embraced or refuted, with a reasoned argument. Instead, Obama largely ignored them in his speech on Friday. While he announced some curbs to the NSA’s authority, he left the basic structure of the intelligence-gathering apparatus intact.

The most meaningful reform he announced was a new requirement that permission be obtained from the Foreign Intelligence Surveillance Court each time US officials want to search the database of phone and Internet records that the government holds. Previously, the court issued broad rules for searching the data, but did not require individual authorization. Obama also pledged that the government will only delve into the database “after a judicial finding or in the case of a true emergency.” Lastly, Obama asked Congress to change the rules of the intelligence court to carve out a role for privacy advocates. Currently, judges only hear from one side.

These are important changes. But the fundamental question of whether the government should collect and retain massive amounts of data on private citizens remains unresolved. While Obama’s NSA review board urged the government to stop the mass collection of data — and have phone companies hold the data instead — Obama seemed determined to ensure that the government maintain access to it.

“The telephone metadata program under Section 215 was designed to map the communications of terrorists so we can see who they may be in contact with as quickly as possible,” Obama said in his speech. “One of the 9/11 hijackers — Khalid al-Mihdhar — made a phone call from San Diego to a known Al Qaeda safe house in Yemen. NSA saw that call, but it could not see that the call was coming from an individual already in the United States.”

The Mihdhar example has been cited for years. It’s disappointing that Obama chose not to offer fresher examples, so the public can assess whether Section 215 is really working.

While Obama acknowledged that the government should not store the phone data indefinitely — due to the potential for abuse — he did not offer a solution. Instead, he asked the intelligence community and the attorney general to report to him within 60 days about possible options for the long-term storage of the data. Although Obama vowed to “transition” away from the metadata program, it’s unclear whether it will live on under another name.

Perhaps the most troubling aspect of Obama’s speech was the timing. It comes weeks before an expected report by the Privacy and Civil Liberties Oversight Board. That board, set up in the wake of Sept. 11, is appointed by the president to review actions taken to protect the country from terrorism. By announcing his changes now, Obama is preempting the oversight board, argues Shahid Buttar, executive director of the Northampton-based Bill of Rights Defense Committee.

Obama, who once spoke out so forcefully against the Bush administration’s actions in the war on terror, has become a defender of the intelligence apparatus. If he feels that national security truly depends on the collection and retention of large amounts of data, he needs to make a better, more thorough case to the American people.